top of page
  • Tanish Gupta and Shubham Gandhi

Interpretation of Article 75 WHO: An Impeding Jurisdictional Basis

With the Covid-19 declared a Public Health Emergency of International Concern (“PHEIC”), allegations of violation of provisions of International Health Regulation (“IHR”) 2005, particularly Article 6, are being labeled against China. The United States is the front-runner, with few other countries from the European Union wanting to take strong legal action against China for the mayhap. Historically, states have been reluctant to report timely to the World Health Organisation (“WHO”). In 2014, there had been a delay in notifying WHO of the Ebola outbreak, resulting in PHEIC. The Covid-19 situation seems to be the first time the International Community aspires to hold the defaulting State legally responsible. Though such cases have never been brought before the International Court of Justice (“ICJ”), the principal judicial organ of the United Nations, the question to ponder is, can the states in effect, conveniently and without major legal impediments bring such cases before ICJ?


Not delving into the issue of liability of China, the authors, in this article, seeks to examine the jurisdictional basis laid down under Article 75 of the Constitution of WHO (hereinafter "Article 75"), and highlight the intricacies of Article 75, which in essence, restricts States to reach out to ICJ for the adjudication.


The Compromissory Clause


Consent of the states to submit to the jurisdiction is considered the sine qua non for the ICJ to exercise its jurisdiction. The consent need not necessarily be given by recognizing the court's jurisdiction as compulsory ipso facto or by a special agreement and may be derived from a treaty or convention to which the concerned states are parties. Accordingly, as per Article 36(1) of the Statue of ICJ, the court can assume jurisdiction on the matter specifically provided for in the treaty.

Article 75 enunciates the compromissory clause for submission of the matter to ICJ. It prescribes two preconditions for seisin of the court: that the question or dispute should be concerned with "the interpretation or application" of the WHO Constitution and that it is "not settled by negotiation or by the Health Assembly."


Concerning Interpretation or Application


Failure on the part of the State to inform WHO, of an event that may become a public health emergency of international concern, in a timely manner essentially amounts to a violation of Article 6 and Article 7 of IHR 2005. A state seeking to bring the other State before ICJ for its failure to timely inform WHO would invariably invoke jurisdiction of ICJ under Article 75.


For the ICJ to exercise jurisdiction, the dispute must be concerned with the interpretation or application of the treaty whose compromissory clause is being invoked. Indeed, the court has accepted that Article 75 provides for ICJ's jurisdiction; however, a legal conundrum, though often overlooked, confronts the parties. Can a dispute on violation of provisions of IHR 2005 be treated as a dispute concerning the interpretation or application of the Constitution of WHO? A state may conveniently argue that the World Health Assembly ("WHA") has adopted IHR 2005 in light of its power under Article 21(a) of the Constitution of WHO, and as enunciated in Article 22 of the Constitution, the regulation binds member states unless they have expressly opted out of such regulation. Therefore, through Articles 21 and 22 of the Constitution of WHO, one may argue that a dispute concerning IHR 2005, is in essence, a dispute concerning the Constitution of WHO.


However, exploring the provision more closely, Article 21 is concerned with "authority to adopt regulations" and Article 22 with the process of "come(ing) into force" of regulation for all members. None of the provisions, in reality, is about the content, interpretation, or application of IHR 2005. Hence, the authors view that the Constitution of WHO is only concerned with the adoption and coming into force of IHR 2005, and the matter concerning interpretation and application of IHR 2005 cannot amount to the interpretation and application of the Constitution WHO.


Interpretation of "Or"- Alternative or Cumulative


The second precondition stipulated in Article 75 for reference of the matter to ICJ is that it "is not settled by negotiation or by the Health Assembly." The provision is construed as negative, meaning there should be a failed attempt to resolve the dispute by negotiation and WHA. Prima facie, the use of the term "or" may look to give a disjunctive interpretation, i.e., that the dispute must first be referred to either negotiation or WHA. However, the word "or" cannot ipso facto be contrasted with the word "and” as both in ordinary and legal parlance, used in alternative and cumulative sense. The courts have to, at times, construe “or” as meaning “and”. In the case of South China Sea Arbitration, the arbitral tribunal opined that the term “or” in Article 121(3) of UNCLOS prescribes a cumulative requirement. A deeper analysis has been undertaken to understand the true meaning of “or” in Article 75.


In the Armed Activities on the Territory of the Congo case, a similar objection regarding the interpretation of Article 75 was raised before the ICJ, to which many authors believe that the court settled the matter regarding interpretation. However, in reality, the court ruled that it cannot assume jurisdiction based on Article 75 since DRC failed to display a question or dispute concerning the interpretation or application of the WHO Constitution. Even assuming the existence of such a dispute, the court opined that the other precondition, “namely that it (DRC) attempted to settle the question or dispute by negotiation with Rwanda or that the World Health Assembly had been unable to settle it,” is not satisfied. The court in substance never delved into the contention of the meaning or interpretation of the work “or” as used in the provision, and therefore, the decision cannot be relied upon for our present discussion.


Negotiation and Settlement by WHA are not alternatives


In another case, Ukraine v. Russian Federation (“Ukrain case”), ICJ was called upon to interpret the meaning of “or” as used in Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Notingly, the provision is worded identically as Article 75.


The ICJ, in this case, construed “or” to mean alternatives since both the methods seek to achieve an agreed solution to a dispute, and interpreting “or” as “and” would mean renegotiation. Article 11 to 13 of CERD prescribes the procedure to resolve a dispute, according to which a CERD Committee will be formed to facilitate an “amicable resolution,” which is again open to the parties to accept or reject. Thus, settlement of the dispute by the procedure provided for in CERD is, in essence, settlement of the dispute by an agreement which is the same as negotiation, making both alternatives of each other.


Given the reasoning of ICJ in the Ukraine case, it is unlikely that Article 75 will be interpreted in the same way. WHO is a specialized body of the United Nations having its governing structure & procedural rules. As prescribed in Article 10 of the Constitution, the WHA is composed of delegates of member states and is the supreme decision-making body of WHO. If, in future, a dispute is brought before WHA, vide Rule 70 of the Rules of Procedure of World Health Assembly, it has the power to suspend the voting privileges and services of a member” and may request ICJ for an advisory opinion.

Unlike the CERD Committee, the WHA has powers to make decisions binding on member states. The dispute settlement by the WHA is not based on the agreement of the concerned parties and, therefore, cannot be considered an alternative to negotiation.


The Successive Steps


Article 75 is worded in negative. Instead of “or, “and” could not be used as it would read as “which is not settled by negotiation and by the Health Assembly shall be referred to the ICJ,” further meaning that the dispute has to be solved by both negotiation and the WHA, and even if one process succeeds but the other fails, it would be open to the parties to refer to ICJ. Such an insertion of “and” would leave the provision grammatically incorrect and absurd.


Therefore, “or” in Article 75 has to be understood in a cumulative sense. Also clearly enunciated by the United Nations Handbook on the Peaceful Settlement of Disputes between States, Article 75, thus, prescribes three successive steps: first, an attempt must be made to resolve the dispute by negotiation; second, if negotiation fails, the dispute must be referred to the WHA; after that, if the dispute is still not resolved, it shall be referred to ICJ.


Conclusion


The interpretation of Article 75 cannot be done by adopting a literal rule, and notwithstanding the desired outcome, the court has to adopt a legal approach to interpret the provision. From the discussion in the article and as clearly laid down in the Handbook of the United Nations, it is clear that “or” is used in a cumulative sense and should be interpreted as “and”. Any argument to draw inspiration from the Ukraine case cannot sustain as the settlement process of the two bodies are fundamentally different. The authors started this article with a question: Can a case against China as to Covid 19 outbreak ever reach the doors of ICJ? The answer is negative. Article 75 is so intrinsically worded that to reach ICJ, the State must exhaust all the available settlement mechanisms, which invariably leads to the state avoiding the Apex Judicial body in International law.

4 views0 comments

コメント


bottom of page